Appeal No. 1999-2065
Application 08/651,502
movement of the jaws to the open position and can eject
staples in both the open and closed positions.”
We do not agree with the examiner’s position for the
following reasons. Initially, it is noted, that in Fischer
the “teeth of wheel 22” do not contact the rack (14) as
asserted by the examiner. Instead, the teeth of wheel (22)
contact the chain (20) as shown in Figure 1. It appears that
the examiner may have actually intended to refer to the teeth
on the pinion (15) as contacting the rack (14). Nevertheless,
our review of Fischer’s wire stitching instrument or surgical
stapler reveals that the first and second handles therein,
respectively having a staple magazine (a) and anvil (b)
associated therewith, and the staple ejecting mechanism
including crank (18), sprocket wheels (19)
and (22), chain (20), rack (14) and star-wheels (26), are not
structurally associated with one another in the manner
required by appellants’ claim 45 on appeal. More
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